Kuragadeppa S/O Shivappa ... vs Mudibasappa S/O Nagappa Kurgodi ...
2022 Latest Caselaw 585 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 13TH DAY OF JANUARY 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                    RSA.NO.1550/2007 (INJ)
BETWEEN

1.     KURAGADEPPA S/O SHIVAPPA KURAGADI,
       SINCE DECEASED BY HI LRS.

1(a)   BASAVANNEVVA W/O KURAGODEPPA KURGADI,
       AGE: 78 YEARS, OCC: HOUSEHOLD WORK,
       R/O NARAYANPUR, TQ.SHIGGAON.

1(b)   DUNDAPPA S/O KURAGODEPPA KURGADI,
       AGE: 63 YEARS, OCC: RETIRED LIFE,
       R/O NARAYANPUR, TQ.SHIGGAON.

1(c)   SAHADERAPPA S/O KURAGODEPPA KURGADI,
       AGE: 51 YEARS, OCC: EX-SERVICEMAN,
       R/O NARAYANPUR, TQ.SHIGGAON.

1(d)   SHIVANAGAPPA S/O KURAGODEPPA KURGADI,
       AGE: 45 YEARS, OCC: JUDICIAL SERVICE,
       R/O GOKAK, TQ.GOKAK.

1(e)   SHIVAPPA KURAGODEPPA KURGADI,
       AGE: 41 YEARS, OCC: SERVICE,
       R/O NARAYANPUR, TQ.SHIGGAON.

1(f)   CHANNABASAPPA S/O KURAGODEPPA KURGADI,
       AGE: 38 YEARS, OCC: AGRICULTURE,
       R/O NARAYANPUR, TQ.SHIGGAON.

1(g)   SHARADA W/O MAHADEVAPPA VARTI,
       AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
       R/O ALADAKATTI, TQ. HAVERI.
                               2




1(h)   NEELAVVA W/O SHEKHAPPA BASALVAD,
       AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
       R/O BINNIMATTI, TQ. HUVINAHADAGALI.

1(i)   BSAVARAJ S/O KURAGODEPPA KURGADI,
       AGE: 31 YEARS, OCC: AGRICULTURE,
       R/O NARAYANPUR, TQ.SHIGGAON.

2.     MAHADEVAPPA S/O KURAGODEPPA KURGADI,
       AGE: 53 YEARS, OCC: AGRICULTURE,
       R/O NARAYANPUR, TQ.SHIGGAON.
                                                  ... APPELLANTS
(BY SRI.N.P.VIVEKMEHTA, SRI.BASAVARAJ KAREDDY,
SMT.ARHANA MURTHY P, SRI.M.R.MALIPATIL, ADVS.)

AND

MUDIBASAPPA S/O NAGAPPA KURGODI,
SINCE DECEASED BY HIS LRS.

1.     SMT.GANGAVA W/O MUDIBASAPPA KURAGODI,
       AGE: MAJOR, OC: HOUSEHOLD WORK,
       R/O IRRAHIMPUR, TQ.SHIGGAON, DIST: HAVERI.

2.     BASAPPA S/O MUDIBASAPPA KURAGODI,
       SINCE DECEAED BY HIS LRS.

2A.    SHANTAVVA W/O BASAPPA KURAGODI,
       AGE: MAJOR, OCC: HOUSEHOLD WORK,
       R/O KURAGODI, TQ.SHIGGAON, DIST: HAVERI.

2B.    PRAKASH S/O BASAPPA KURAGODI,
       AGE: MAJOR, OCC: AGRICULTURE,
       R/O KURAGODI, TQ.SHIGGAON, DIST: HAVERI.

2C.    NEELAMMA W/O SOMANNA BADAPPANAVAR,
       AGE: MAJOR, OCC: HOUSEHOLD WORK,
       R/O KALASA, TQ. KUNDAGOL, DIST: DHARWAD.

2D.    RAMESH S/O BASAPPA KURAGODI,
       AGE: MAJOR, OCC: AGRICULTURE,
       R/O KURAGODI, TQ.SHIGGAON, DIST: HAVERI.
                                3




2E.   SHAILA W/O DYAMANNA MADALLI,
      AGE: MAJOR, OCC: HOUSEHOLD WORK,
      R/O KUNDAGOL, DIST: DHARWAD.

2F.   SURESH S/O BASAPPA KURAGODI,
      AGE: MAJOR, OCC: STUDENT,
      R/O KURAGODI, TQ.SHIGGAON, DIST: HAVERI.

2G.   PUSHPA D/O BASAPPA KURAGODI,
      AGE: MAJOR, OCC: HOUSEHOLD WORK,
      R/O KURAGODI, TQ.SHIGGAON, DIST: HAVERI.

2H.   NAGAVENI D/O BASAPPA KURAGODI,
      AGE: MAJOR, OCC: STUDENT,
      R/O KURAGODI, TQ.SHIGGAON, DIST: HAVERI.

3.    NAGAPPA S/O MUDIBASAPPA KURAGODI,
      AGE: MAJOR, R/O IBRAHIMPUR, TQ.SHIGGAON, DIST: HAVERI.

4.    MAHALINGAPPA S/O MUDIBSAPPA KURAGODI,
      AGE: MAJOR, OCC:PHYSICAL INSTRUCTOR,
      B.V.B.COLLEGE HUBLI, R/O HUBLI, TQ. HUBLI.

5.    SMT.SHANTAVVA W/O GADIGEPPA GANIGER,
      AGE: MAJOR, OCC: HOUSEHOLD WORK,
      R/O SAVANUR, DIST: HAVERI.

6.    SMT.SHANKRAVVA W/O YALLAPPA HIRALLI,,
      AGE: MAJOR, OC: HOUSEHOLD WORK,
      R/O DEVAGIRI, TQ. HAVERI, DIST: HAVERI.

7.    SMT.PARAVVA W/O SHIVAPPA HIRALLI,,
      AGE: MAJOR, OC: HOUSEHOLD WORK,
      R/O DEVAGIRI, TQ. HAVERI, DIST: HAVERI.
                                                ... RESPONDENTS
(R1, ABATED, R2A TO R2H, R3, R5, R6 AND R7 ARE SERVED
UNREPRESENTED, NOTICE TO R4 HELD SUFFIIENT)
      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DEREE DATED 06.03.2007
PASSED BY THE LEARNED ADDL. CIVIL JUDGE (SR.DN.) HAERI IN
R.A.NO.49/1994 AND ALLOW THE APPEAL BY DECREEING THE
O.S.NO.14/1994 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
SHIGGAON.
                                  4




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

The captioned Regular Second Appeal is filed by the

unsuccessful plaintiff questioning the judgment and decree of

the courts below in dismissing the suit filed for bare injunction.

2. It is useful to cull-out the genealogy of the family

which is narrated in the written statement so as to understand

the actual lis between the parties. The family tree is as follows:

Dundppa

Shivappa Basappa Nagappa (died issueless)

Adivappa Kurgodeppa (Plff.1)

Dundappa Mahadevappa (Plff.2)

3. The appellants/plaintiffs have filed a suit for bare

injunction to restrain the defendant from interfering with the

peaceful possession and enjoyment over the suit schedule

property. The appellants/plaintiffs specifically contended that

they are the owners and in actual possession over the suit

schedule property. The appellants/plaintiffs further contended

that plaintiff No.1 being the eldest member of the plaintiffs'

family, his name is duly mutated in the VPC records. It is

contended that defendant has no right, title and interest over

the suit schedule property. In spite of repeated requests, the

respondent/defendant is not in a mood to heed to the request

made by the appellants/plaintiffs and is interfering with the

appellants/plaintiff's peaceful possession and enjoyment over

the suit schedule property. On these set of pleadings, the

appellants/plaintiffs sought for perpetual injunction against the

defendant.

4. Respondent/defendant on receipt of summons

contested the proceedings by filing written statement. The

defendant has specifically contended that appellants/plaintiffs

are not the owners of the entire extent that is allotted to the

branch of Shivappa. Respondent/defendant contended that

appellants/plaintiffs are owners of part of VPC No.110/A

(122/A), which is situated towards extreme north and remaining

portion towards south of the property is owned by Adivappa

Kurogodi. After his death, his son Dundappa has become the

owner of the said portion of the property.

Respondent/defendant further contended that he has never

interfered with the peaceful possession and enjoyment of the

appellants/plainitffs portion, which is extreme north side and

therefore, prayed for dismissal of the suit.

5. The trial court having assessed oral and

documentary evidence found that appellants/plaintiffs are not

exclusive owners of the suit schedule property. The trial court

having assessed oral and documentary evidence found that

plaintiff's branch has ½ share in the suit schedule property

whereas remaining portion is owned by Adivappa and after his

death, his son Dundappa is in possession of remaining ½ share.

The trial court having examined the documentary evidence

produced by the appellants/plaintiffs and respondent/defendant

found that branch of Nagappa owned 2/3rd share pursuant to

gift deed executed by Basappa in favour of Nagappa on

05.10.1929. Therefore, respondent/defendant's father acquired

2/3rd share in the property whereas 1/3rd share is subject

matter of the present suit. Out of 1/3rd share, the trial court

found that plaintiff No.1's brother's son namely, Dundappa has

sold ½ share in 1/3rd share in favour of defendant's son under

registered sale deed dated 09.01.1985.

6. Probably, it is in this background, the trial court

found that the present litigation is off-shoot of the agreement

executed by Dundappa in favour of respondent/defendant

agreeing to sell his share and consequential sale deed executed

by Dundappa selling his undivided share in the property under

the registered sale deed dated 04.12.1984 as per Ex.P3. On

these set of reasoning, the trial court found that

appellants/plaintiffs are not absolute owners and are not in

possession of the entire extent of the suit schedule property.

Therefore, trial court was of the view that appellants/plaintiffs

have failed to establish their lawful possession over the suit

schedule property and has also come to the conclusion that

there is no interference by the respondent/defendant as alleged

by the appellants/plaintiffs.

7. Being aggrieved by dismissal of the suit, the

appellants/plaintiffs preferred an appeal before the first

appellate court in R.A.No.49/1994. The first appellate court on

re-appreciation of oral and documentary evidence has concurred

with the finding and conclusion arrived at by the trial court and

has dismissed the appeal. It is against these concurrent

judgments, the present appellants/plaintiffs are before this

court.

8. Heard the learned counsel for the appellants,

learned counsel for the respondents and perused the judgments

under challenge.

9. On perusal of the material on record, I would find

that appellants/plaintiffs have failed to establish that they are in

lawful possession of the entire extent of the suit property. From

the genealogy and the admitted set of facts and also

documentary evidence reveals that Shivappa's branch had only

1/3rd share. In the said 1/3rd share, one Dundappa who is the

eldest son of Adivappa had ½ share and the said Dundappa has

alienated his half share in favour of defendant's son under sale

dated 14.12.1984 vide Ex.P3. If Dundappa has sold his ½ share

in favour of defendant's son, both the courts below have rightly

held that suit also suffers from non-joinder of necessary parties.

Any alleged interference has to be attributed to the purchaser

and not against the father of the purchaser. It is stated in

unequivocal terms by respondent/defendant that he has no

concern to the suit property and he has no intention to interfere

with the appellants/plaintiffs possession. These significant

details are taken into consideration by both the courts below

and held that plaintiffs are not in possession of the entire extent

and also held that the alleged interference is not proved.

10. I do not find any substantial question of law

involved in the present appeal. Accordingly, the appeal stands

dismissed.

Sd/-

JUDGE MBS/-